Director of Public Prosecutions v Van Abel

[2017] VCC 1601

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-00852

DIRECTOR OF PUBLIC PROSECUTIONS

v

DEREK PETER VAN ABEL

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	3 November 2017
CASE MAY BE CITED AS:	DPP v VAN ABEL
MEDIUM NEUTRAL CITATION:	[2017] VCC 1601

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr P. Triandos	The Office of Public Prosecutions
For the Accused	Ms M. Mykytowycz	Valos Black & Associates

HIS HONOUR:

1Derek Peter Van Abel, you have pleaded guilty to one charge of conduct endangering life, one charge of being a prohibited person in possession of a firearm, one charge of theft and one charge of possession of a drug of dependence.  Those crimes carry maximum penalties of ten years, ten years, ten years and a monetary penalty.

2You are 24 years of age and were 22 years of age at the time of the offending.  You must therefore be sentenced in my view, as a youthful offender.  You have pleaded guilty to a settled indictment and must get the benefit of that.  On the material before me, I am satisfied that you are displaying appropriate remorse and you must also of course get the utilitarian benefit of that plea of guilty.  You do have prior convictions, but only from two court appearances, one of which would appear to be a consolidation.  In the end, you were given 118 days imprisonment and having looked through those, the matters for which you received that, it is clear that was all part and parcel of a drug addiction.  The offending can be described in fairly short compass as the Crown opening has been exhibited. 

3In early 2016, you and Matthew Smith, a Simon Cox, who I have previously sentenced, and a Jason Napier, went to intimidate and scare a Mr Ashley Smith at his home in White Road in Wonthaggi.  At approximately 2 am on
17 April 2016, the four of you attended at the home, armed with firearms.  That gives rise to the charge of a person possessing a firearm.  Yours was a sawn-off shotgun and sawn-off shotguns and drugs do not mix.  Accordingly, there must be an appropriate sentence for that.

4A number of shots were fired into the shed, while three persons were inside and that gives rise to conduct endangering life.  You, Mr Van Abel, later stole a packet of cigarettes and police found some cannabis in your possession which is of no real account in this matter.  The circumstances of it were that from April 2016, Mr Matthew Smith, for reasons which are not particularly clear, they are obviously to do with drugs, was waging a bit of a verbal war with a
Mr Ashley Smith.  Matthew Smith enlisted the three of you to go with him to intimidate and scare the ultimate intended victim.

5In any event, as I said, in around about 2 am on that day, Mr Napier drove you, Mr Smith and Mr Cox to the rear park of the TAFE College in White Road in Wonthaggi, this is opposite Mr Smith's home.  Napier was to wait there in the car.  You, Smith and Cox carrying firearms, walked across to the rear of
298 White Road, that being the home - for reasons which would probably be pretty obvious, Mr Smith had CCTV operating on his premises.  You were wearing a hooded windcheater and as I said, you were carrying a 12 gauge sawn-off shotgun. 

6You all approached the gate, went into the property, walked around the shed and shots were fired into the shed.  Something in the order of nine shots were fired.  I accept for the purpose of this plea, that you did not actually discharge your firearm, but you clearly had one and it would appear to have been loaded.  That gives rise to the conduct endangering life.  As your counsel pointed out, most of the shots were fired high but certainly at least one was fired at a level where had a person been standing there, they would have received a severe injury indeed.

7In any event, a vehicle was stolen that you are not charged with and you left the area on foot.  After that, you stole a packet of cigarettes from a motor vehicle and as I have said, when police searched, they found cannabis in your possession.  That is the offending in a nutshell.  You were arrested and it is clear that during the time that the police were searching for you, you still had the gun and fortunately, at least, that gun was recovered.

8The offending has to be regarded as serious.  Drugs and sawn-off shotguns serve only one purpose, do not mix.  There has to be the application of general, and in your situation, specific deterrence, as well an appropriate punishment.  A significant gaol sentence is inevitable.  I sentenced your co-accused, Mr Cox, to three with a two.  He had theft of a motor vehicle within his matter and he did not have the prohibited person charge.  He was some eight years older than you and I note here that you were 22 and those two co-accused were 30 and there are significant differences.  He had something in the order of four prior convictions for armed robbery.

9The submissions made on your behalf, were very helpful and concise.  You were brought up in a happy family.  You were diagnosed at an early age with ADHD.  You had a support person in class and you were prescribed Ritalin.  You went to Lyndhurst Secondary School for a couple of years.  You went to Kooweerup Secondary and you left school in Year 10.

10You started a carpentry apprenticeship for a couple of years, before leaving that and you have not worked since.  At the age of 17, you commenced using ice and that has been your problem ever since.  As I have indicated, your previous matters would appear clearly to relate to that addiction.  You have now been in custody some 565 days and clearly you have had an opportunity to dry out and consider your position.

11Whilst in custody, your drug screens have been negative.  You are in protection and I certainly take that into account that you have done it in those circumstances.  You have completed a number of courses, like doing courses in protection is very difficult indeed, let alone on remand.  You were based in a mainstream unit until June 2016.  The protection came about because you were bashed.  You have become the head billet in Deakin C and that is very much to your credit.  Your intention upon leaving gaol is to, as you have said, to work.

12Tendered on your behalf also was a letter from your mother. She is very open in subscription in the problems that you have endured.  She says, and that is often the case, that she worries about how she and your father could have been better parents.  She points out that you had ADHD and auditory processing delay and that caused you difficulty with speech and also to see the cause and effect of situations.

13She said that you have - since you have been remand, there has been a very big change in you.  She said you seemed to have matured and showing signs of empathy which you struggled with previously.  You are glad to see them and you are indicating to them that you do have an intention of turning your life around.  You are at an age where that can most certainly be done.  The prospects of your rehabilitation are really up to you and clearly involve the non-use of ice and the non-association with the criminal element wherever you are living.

14The risk of you reoffending is hard to determine.  But it is really dependent upon whether you rehabilitate or not.  You do not have a large number of court appearances and certainly do not appear to have any as a child which gives me some confidence in your capacity to remain clear.  The sentence however does have to reflect how serious the matters are.  It will of course give you an opportunity for parole immediately, as I have calculated it, bearing in mind the parity aspects of Cox and after that, it is really going to be up to you.

15Accordingly, on the charge of reckless endangerment, 21 months.  Prohibited person in possession of a firearm, 12 months.  Theft, seven days concurrent.  Possess cannabis, convicted and discharged.  Six months of the sentence imposed on the firearms charge to be served cumulatively on the sentence imposed on Charge 1, which gives an effective head sentence of 27 months.

16I direct that you serve a minimum term of 18 months before becoming eligible for parole.  I direct that 565 days be reckoned as having been served under this sentence.  But I say, pursuant to s.6AAA, but for your plea of guilty, you would have been sentenced to be imprisoned, that is always academic, sentenced to be imprisoned for a period of three years, with a minimum term of two.

17MS MYKYTOWCYC:  As Your Honour pleases.

18MR TRIANDOS:  Your Honour pleases.

19HIS HONOUR:  All right, there are no other orders I need to make?

20MR TRIANDOS:  No.

21HIS HONOUR:  No.  All right, do you need to speak to him?

22MS MYKYTOWCYC:  Yes, I'd be grateful to Your Honour.

23HIS HONOUR:  Yes, all right.  He's all right here, just hold him there for a second so his barrister can speak to him.

24MS MYKYTOWCYC:  Thank you.

25HIS HONOUR:  Yes, all right.

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